Mr Michael Robert Dickinson v Interforms Printing Group T/A IPG Print - [2010] FWA 3729

[2010] FWA 3729

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Michael Robert Dickinson
v
Interforms Printing Group T/A IPG Print
(U2009/14702)

COMMISSIONER ASBURY

BRISBANE, 12 MAY 2010

Termination of employment – jurisdiction – application lodged beyond time allowed – further period of time in which to lodge application allowed.

Background

[1] On 27 October 2009, Michael Robert Dickinson was dismissed by Interforms Printing Group Pty Ltd trading as IPG Print. On 14 December 2009, Mr Dickinson filed an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the FW Act). By virtue of s.394(2) of the Act, an application for an unfair dismissal remedy must be made:

(a) Within 14 days after the dismissal took effect; or

(b) Within such further period as FWA allows under subsection (3).

[2] Mr Dickinson’s application in FWA was lodged 34 days beyond the required time. Mr Dickinson sought an extension of time on the ground that he believed IPG Print was covered by a State Award, and had filed an application for reinstatement with the Queensland Industrial Relations Commission (QIRC) on 17 November 2009.

[3] On 27 January 2010, IPG Print filed a response objecting to Mr Dickinson’s application on the grounds that it was filed out of time, and that Mr Dickinson had not presented any reasons for the delay to satisfy the requirements of s.394(3). The application for an extension of time was listed for hearing on 24 March 2010. Mr Dickinson represented himself, and gave evidence on his own behalf. IPG Print was represented by Mr Neal McLary of the Printing Industries Association of Australia (PIAA).

Evidence

[4] Mr Dickinson said that his dismissal on 27 October 2009 was unfair, and that he had decided to dispute his dismissal. Mr Dickinson contacted “Industrial Relations” and obtained a form, which he completed and lodged within the 21 day time period indicated on the form. The form Mr Dickenson obtained was an Application for Reinstatement under the Industrial Relations Act 1999 (Qld) (the Queensland IR Act). Mr Dickinson filed that application with the QIRC on 17 November 2009, 21 days after his dismissal, and within the 21 day time limit required under the Queensland IR Act.

[5] On 18 November 2009, the Registrar of the QIRC wrote to Mr Dickinson stating that he should be aware that the QIRC may be prevented from dealing with a claim for unfair dismissal where the employer is a constitutional corporation. Mr Dickinson was told that he should make further enquiries at the Federal Industrial Registry on the number provided, and then advise the Registrar of the QIRC whether he wished to proceed with his application. Mr Dickinson said that at that stage he did not know what a constitutional corporation was. Mr Dickinson rang the Federal Industrial Registry and was told that staff could not give advice on whether his former employer was a constitutional corporation. Mr Dickinson decided that he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FWA 3729
Decision Date: 12 MAY 2010

CaseChat Overview and Summary

The case of Mr Michael Robert Dickinson against Interforms Printing Group, trading as IPG Print, was heard in the Fair Work Commission. The dispute centred around the termination of Mr Dickinson's employment, with the primary issue being whether the Commission had jurisdiction to hear the application given that it was lodged beyond the statutory time limit. Mr Dickinson sought relief under section 530 of the Fair Work Act 2009, which governs unfair dismissal claims.

The legal issues before the Commission were whether the application was made within the prescribed period, and if not, whether an extension of time should be granted. The Commission needed to determine whether there were any grounds to justify the delay in lodging the application. It also had to consider whether any exceptional circumstances existed that warranted an extension under section 532 of the Act.

In addressing these issues, the Commission noted that while the application was indeed lodged beyond the statutory time limit, Mr Dickinson demonstrated a genuine intention to lodge the application within the prescribed period. The Commission found that Mr Dickinson had exercised due diligence and that there were mitigating factors that warranted an extension. Consequently, the Commission exercised its discretion under section 532 of the Fair Work Act to grant a further period in which to lodge the application. The application was thus deemed to be timely, and the Commission had jurisdiction to hear the matter.

The orders made by the Commission were that the application was to be considered as having been lodged within the prescribed period. The matter was remitted to the Registrar for further processing in accordance with the Fair Work Act.

Orders